Why the D.A. Had to Drop the DSK Case

Mitra Hormozi, who was most recently chair of the New York State Public Integrity Commission and has served as deputy chief of staff in the New York Attorney General's Office and as an assistant U.S. attorney in the Eastern District, writes: While some jurisdictions permit a prosecutor to go forward when he or she is not convinced of the guilt of a defendant (so long as there is probable cause to support the case), that has not been the standard relied on by New York City's state and federal prosecutors. Nor should it be.

By Mitra Hormozi|August 23, 2011 at 12:00 AM

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The Manhattan District Attorney’s Office yesterday recommended dismissing the sexual assault charges against Dominique Strauss-Kahn. Whether you feel that the defendant is getting an unwarranted break or, conversely, that he should never have been charged, the result is all but inevitable given the obligations that constrain the district attorney.

Putting aside the salacious details of what did or did not happen in Suite 2806 of the Sofitel Hotel in Manhattan, from a prosecutor’s perspective, the case was simple.

Here, you had a single episode crime. The alleged attacker apparently does not dispute that there was a sexual encounter. The only dispute is the nature of that encounter. The only eyewitnesses happen to be the alleged attacker and the purported victim. Disclosures by the prosecution and public reports suggest that there was no meaningful evidence, other than the testimony of the purported victim, that the encounter was forcible. Nor was there anything close to an admission from the defendant. So what you had is a case that is the proverbial “he said, she said”&mdash;only with a twist.

The twist here is that while the prosecutors and investigators clearly believed the victim-witness at the inception of the case, they later developed real doubts about her credibility. Among other things, it appeared that the woman had told several inconsistent versions of her encounter with Strauss-Kahn and its aftermath and that she falsely told the prosecution that she had previously been the victim of a brutal rape unrelated to the incident involving Strauss-Kahn.

With regards to this other incident, the woman appeared to have provided details and told her story in a compelling and convincing manner prior to recanting it. She also lied to prosecutors about other parts of her history and admitted that she had falsified her tax forms and immigration papers.

Make no mistake, that’s not saying that she lied about the nature of her encounter with Strauss-Kahn. Rather, it seems that the prosecution was in the untenable position of not knowing what’s true or what’s false.

This presented a variety of problems for an ethical prosecutor. Not least among these is that the prosecution is obligated to disclose to the defense information that would tend to undermine their case and the credibility of its witnesses. Brady v. Maryland, 373 U.S. 83 (1963); CPL 240.20; NYS Rules of Professional Conduct 3.8(b).

Further, a prosecutor is prohibited from eliciting testimony that is false and has a duty to correct any falsehoods it has elicited during the course of a trial. NYS Rules of Professional Conduct 3.3 (3); see also Nix v. Whiteside, 475 U.S. 157 (1986).

Even these infirmities might be overcome if the prosecution still had faith in its case. Here, however, it appeared that the district attorney’s office was no longer convinced they had proof beyond a reasonable doubt to support a guilty verdict.

While some jurisdictions permit a prosecutor to go forward when he or she is not convinced of the guilt of a defendant (so long as there is probable cause to support the case), that has not been the standard relied on by New York City’s state and federal prosecutors. Nor should it be.

For people to have faith in the integrity of the criminal justice system, you need prosecutors who don’t ask a jury to convict if they are unwilling to do so themselves. Having stood before a jury and asked them to send someone to jail, I find it painful to imagine how a person could ask a jury to do something that a prosecutor would be unwilling to do herself.

Admittedly, this means that there are some cases a prosecutor will dismiss or decline to pursue, even when there is a sense in the general public that the defendant is probably guilty. But justice is not about convicting the “probably guilty.”

A few years ago, as part of a post-conviction proceeding where evidence had been presented suggesting that two men convicted of murder might be innocent, an assistant district attorney from Manhattan claimed he was pressured to argue against vacating the convictions. After the fact, he alleged that at the time of the court proceeding he came to believe the defendants were, in fact, wrongfully convicted and raised the issue with his superiors. See “Doubting Case, a Prosecutor Helped Defense,” New York Times, June 23, 2008 (http://www.nytimes.com/2008/06/23/nyregion/23da.html?ref=palladiumnyc); “The Manhattan District Attorney Responds,” New York Times, June 30, 2008 (http://www.nytimes.com/2008/06/30/opinion/lweb30morgenthau.html?ref=nyregion).

The district attorney denied the ADA’s claim and assured the public that no prosecutor would be placed in such a dubious moral predicament. Further, while legal commentators and ethics experts debated the best course for a prosecutor to take in the anomalous situation presented, everyone agreed that it is just plain wrong to ask a prosecutor to pursue a case in which he or she believes a conviction would lead to an injustice.

For all these reasons, it was all but a certainty that the Strauss-Kahn indictment would be dismissed. Along the way, some will bemoan the sloppy nature of the way this case has played out in the media and others will worry that the result may chill the willingness of sexual assault victims to come forward. But the primary issue is whether the district attorney is willing to acknowledge that he cannot, and therefore will not, ask a jury to do something he is unwilling to do himself. And that seems right.

At the end of the day, integrity and ethical propriety should be the measure by which a public prosecutor judges his case and we judge the public prosecutor.

Mitra Hormozi, who is entering private practice in the fall, was most recently chair of the New York State Public Integrity Commission, and has served as deputy chief of staff in the New York Attorney General’s Office and as an assistant U.S. attorney in the Eastern District.

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